Relicensing of the Pelton Round Butte Project
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Relevant WCD Strategic Priority(-ies):
Gaining Public Acceptance
Comprehensive Options Assessment
Addressing Existing Dams
Sustaining Rivers and Livelihoods
Recognising Entitlements and Sharing Benefits
Sharing Rivers for Peace, Development and Security
Why this is an example of these Strategic Priority(ies)
This example addresses the following key issues: License Conditions, Ownership Structure, Joint Relicensing, License Amendments, Implementation Committees, Funds, Implementation Plan, Adaptive Management
The Pelton Round Butte Project covers approximately 19,300 acres, including 5,000 acres beneath two of the Project’s reservoirs, Lake Billy Chinook and Lake Simtustis. The total annual power production of the project is approximately 1.5 billion kilowatt-hours, which is enough energy to supply more than 137,000 average homes in the PGE/WSPE service territory. The project physically consists of three developments. Farthest upstream is the Round Butte Development, built in 1964, which consists of a 440-foot high rock-filled dam, a powerhouse containing three generating units with a total capacity of 338 MW, and appurtenant facilities. Round Butte Dam forms Lake Billy Chinook, which has a surface area of approximately 4,000 acres and impounds approximately 9 miles of the Deschutes River, 7 miles of the Crooked River, and 13 miles of the Metolius River. Downstream from the Round Butte Development is the Pelton Development, built in 1958. This development consists of a 204-foot high concrete arch dam, a powerhouse containing three generating units with a total capacity of 110 MW, and appurtenant facilities. Pelton Dam forms Lake Simtustis, a 7-mile reservoir with a surface area of approximately 540 acres. Farthest downstream is the Reregulating Development, also built in 1958, consisting of an 88-foot high concrete and rock-filled dam, a powerhouse (built later in 1982) containing a 19.5 MW generating unit, and appurtenant facilities. The Reregulating Dam forms the Reregulating Reservoir, a 2.5 mile-long impoundment with a maximum surface area of approximately 190 acres.
The relicensing process for the Pelton Round Butte Project began in 1996 when competing intents to renew the Project’s license (which expired in 2001) were filed by both PGE and CTWS. PGE’s filed intent covered the Pelton Dam, the Round Butte Dam, and their associated reservoirs; while the CTWS intent covered all three of the project’s dams. [It is interesting to note that the FPA enables anyone to file for a dam license regardless of past connection to the dam; however, if the previous licensee is in good standing, the relicensing process favors the existing licensee. The competing intents were filed after a failed attempt by the two parties to form a relationship prior to entering FERC’s license renewal process. In 1999, both parties filed their separate applications for relicenses. Soon thereafter, though, they came to the conclusion that unless they worked together it would be impossible to reach an acceptable contract and litigation and conflict would prolong and complicate the process for all parties.
On April 12, 2000, PGE and CTWS along with representatives from the Department of the Interior (DOI) (which serves as a trustee for the CTWS) entered into a Comprehensive Global Settlement Agreement (CGSA). Under this agreement, PGE and CTWS would become co-licensees of the project and file a joint application for a new license. The CGSA identified possible issues regarding the operation and impacts of the project that the parties considered might lead to a dispute. This agreement articulated the alignment of interests for PGE, the Tribes, and WSPE. The CGSA helped to keep the key parties aligned on a wide range of environmental, economic, and cultural issues throughout the decision-making process leading up to relicensing. FERC approved this Agreement on November 21, 2000; and on June 29, 2001, the two parties (PGE and CTWS) filed a Final Joint Application Amendment and jointly applied for a new license for the project.
Once the application was filed under FERC’s alternative licensing process, the consultation process began. This brought in a number of other federal, state, and tribal bodies. For example, ODEQ became involved as the entity responsible within the State of Oregon for issuing the Section 401 Certifications pursuant to CWA and state water quality laws. Similarly, the Warm Springs Water Control Board (WCB) became involved as the CTWS entity authorized to issue Certifications pursuant to the CWA and Tribal water quality laws.
On June 25, 2001, the licensees filed applications for water quality certifications for the project pursuant to Section 401 of the CWA with the WCB and ODEQ. On June 24, 2002 and June 25, 2002, respectively, the ODEQ and the WCB issued their water quality certifications. As part of this process, PGE and CTWS entered into an Implementation Agreement with ODEQ. In addition to meeting the Section 401 certification and license conditions as set forth in the Clean Water Act, the Parties also agreed to comply with adaptive management conditions, also set forth in Section 401. These came into effect upon FERC’s issuance of a new license for the project.
FERC published a “Notice Soliciting Additional Study Requests and Establishing Procedures for Relicensing” for the Project on July 11, 2001. A year later, the joint applicants filed the additional information requested by FERC, and on August 12, 2002 a “Notice of Application Ready for Environmental Analysis, and Soliciting Comments, and Final Recommendations, Terms and Conditions and Prescriptions” was issued. Numerous parties submitted preliminary conditions, recommendations, and comments, including DOI through the BIA, BLM, and NOAA Fisheries, as well as environmental NGOs such as American Rivers and WaterWatch of Oregon. The State of Oregon and the licensees filed their responses the comments on February 10, 2003.
On January 31, 2003, PGE and CTWS initiated settlement discussions with a group of stakeholders. A Settlement Working Group (SWG) was formed and began meeting to negotiate the terms of a settlement agreement that would enable the parties to resolve all outstanding issues associated with the relicensing of the project. The SWG met for a period of 17 months, until June 2004. The SWG included all interveners in the FERC relicensing proceeding for the project. On August 29, 2003, FERC issued a draft environmental impact statement (DEIS) evaluating the final joint application amendment. Comments on the DEIS were filed by the licensees as well as by those who had previously submitted preliminary comments and recommendations in response to the Notice of Application Ready for Environmental Analysis. Reply comments were again filed by the licensees and additionally by CTWS.
On December 29, 2003, PGE and the Tribes filed a “Description of Proposed Preferred Alternatives,” which embodied an agreement in principle (AIP) on the environmental measures that the parties sought to include in the final settlement agreement. The parties submitted the AIP in advance of their drafting of the final settlement agreement to enable FERC staff to analyze the parties’ intentions with regards to environmental measures, so that the measures could be incorporated as mitigation measures in the final EIS.
On April 14, 2004, FERC issued a procedural schedule for the execution and filing of the agreement and its related documents. In keeping with the schedule, the licensees filed an “Updated Description of Proposed Preferred Alternative” and a revised biological evaluation. Also pursuant to that schedule, FERC issued a final environmental impact statement (EIS) on June 7, 2004. In the Description of Proposed Preferred Alternative, the final EIS recommended adopting most of the measures included in the AIP, with additional measures recommended by FERC staff.
On July 30, 2004, PGE and CTWS filed a settlement agreement with FERC which was signed by PGE, CTWS, and all of the other parties to the relicensing proceeding, with the exception of the Deschutes Valley Water District, which had reservations regarding the terms of the Water Rights Fund and whether it was appropriate to have licensed dam operators controlling water rights in central Oregon. This was based on a concern by the Water District that this Fund could make it more difficult for other parties to acquire water rights in the future. The conclusion of the settlement agreement effectively amended the relicense applications. FERC issued a notice of the settlement agreement on August 4, 2004. The Oregon Department of Fish and Wildlife (ODFW), ODEQ, Oregon Water Resources Department (OWRD), Oregon Parks, American Rivers, Oregon Trout, Trout Unlimited, and Native Fish Society all filed comments in support of the settlement agreement. The settlement agreement described the operational and protection, mitigation, and enhancement (PM&E) measures for the operation of the project. The settlement agreement also included proposed license articles that the parties had negotiated and jointly asked FERC to incorporate into the new license. No party opposed the agreement.
Following the submission of the settlement agreement, the parties to the agreement requested a technical conference with FERC staff to discuss the settlement agreement and the proposed draft license. The conference was held on October 19, 2004. According to the agenda, the items discussed included FERC’s approval of the project, cost caps, project boundary, and FERC’s statutory responsibilities and jurisdiction. While it was premature for FERC to make formal decisions on specific questions posed at the conference (or to indicate what the ultimate decision might be), FERC staff did share past FERC decisions on related issues from other relicensing proceedings as examples of relevant FERC precedents.
On June 21, 2005 FERC published an Order Approving the Settlement and Issuing the License. The new 50-year license expires in 2055.
Main lessons learned:
In order to be able to comply with the various laws and regulations governing dams, the importance of incorporating the relevant terms into the dam’s license is well-established. Moreover, it is important to make the terms as detailed and clear as possible so that the regulated entity (the dam owners and operators), the regulators, and the public know what is required to comply with the law and with the license. This clarity also helps to identify when the dam is in compliance, and when it is not.
Considering the various competing economic, social, environmental, and recreational interests, it is worth considering how best to arrive at a license that includes the provisions in sufficient detail.
The importance of multistakeholder-based negotiations is central to this example for two reasons. First, it was able to create a basis for trust between all parties, specifically between PGE and CWTS, without which many of the important environmental and economic values that the project brings to the area would have been lost. Second, interest-based negotiations bring the decision-making process to the parties who are affected most by the decisions made by government agencies and the courts.
Compliance with national or international guidelines or policy
U.S. federal law, administered by the Federal Energy Regulatory Commission (FERC).